Millard v. Smith
| Decision Date | 05 June 1906 |
| Citation | 95 S.W. 940,119 Mo.App. 701 |
| Parties | MILLARD, Respondent, v. SMITH et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from Texas Circuit Court.--Hon. L. B. Woodside, Judge.
--The suit is on a promissory note for thirty-seven hundred and fifty dollars, bearing interest at the rate of eight per cent per annum from date, against L. X. Smith, the principal, and the other defendants as endorsers. The defense is a failure of consideration, verdict and judgment for plaintiff for thirty-seven hundred and fifty dollars. The plaintiff is the widow of G. F. Millard, who, in his lifetime, planted and cultivated a ginseng garden on his home place in the city of Houston, Texas county, Missouri, and a larger one on a sixty-five-acre tract of land he owned, situated about three miles from Houston, on Piney river. G. F. Millard, by his last will, devised all the ginseng plants and roots in the home garden to the plaintiff, and also an undivided one-half interest in the sixty-five-acre tract on Piney river and the ginseng plants and roots growing thereon; the other undivided one-half he devised to Thomas F., Homer, and Herbert Millard his nephews, and named the plaintiff and Charles M. Beaumont executrix and executors of his last will, both of whom qualified. Beaumont is also curator of the estate of Herbert Millard, a minor. L. X. Smith and Thomas F. Millard are blood cousins, and were together in Houston sometime in the year 1901, and made a casual examination of the ginseng gardens and discussed the advisability of forming a corporation to acquire the interest of the plaintiff in the ginseng property and to capitalize both gardens. Smith returned to his home in Cripple Creek, Colorado, and in the latter part of the year 1902, Thomas Millard, who was in Waco, Texas, entered into a correspondence with Smith, then in Cripple Creek, respecting the formation of a syndicate of capitalists at Cripple Creek to acquire the interest of plaintiff, or the whole property to incorporate and operate it by cultivating ginseng. This correspondence continued into the early part of the year 1903, and until it was demonstrated that capitalists in Cripple Creek, whom Smith had hoped to interest in the property, would not take hold of it. A proposition that Smith should buy the interest of plaintiff in the property and that a corporation be formed to acquire and operate the whole property, was discussed by further correspondence between Smith and Millard, which culminated in Millard procuring the following contract:
--- "Party of the second part."
After getting possession of this contract, early in May, Thomas Millard went to Cripple Creek and sold plaintiff's interest in the property to Smith for seventy-five hundred dollars, one-half to be paid in cash and the balance to be secured by notes. Smith furnished his father, W. M. Smith, with the money to make the cash payment and sent him, accompanied by Millard, to Houston with authority to close the deal. It was also agreed by and between Millard and L. X. Smith, that a corporation should be formed with a capital of one hundred thousand dollars, fifty thousand dollars of which should represent the value of the whole property and fifty thousand dollars to be held as treasury stock. W. M. Smith and Millard proceeded to Houston, the deal was closed by the payment of thirty-seven hundred and fifty dollars to the plaintiff and the delivery to her of the note in suit, whereupon she executed a deed conveying the property to . The contemplated corporation was immediately organized and its name inserted in the deed as the grantee. The following is a list of the shareholders in the corporation:
The charter of the corporation was issued May 28, 1903, five days subsequent to the execution and delivery of the plaintiff's deed.
The substance of the averments in the answer, pleading a failure of consideration, are that Thomas Millard was the authorized agent of plaintiff in making the sale to Smith; that the value of the property consisted almost entirely in the number and age of the ginseng plants and roots in the garden; that Smith had no knowledge of the number or ages of the plants and had no opportunity to count them and relied entirely upon the statements and representations of Millard plaintiff's agent, respecting them; that Millard represented and warranted, that in the home garden, there were ten thousand four-year-old plants and twenty-five thousand from five years up, and a mixed lot of different ages, from one to two years old; that in the river garden there were thirty-one thousand three-year-old plants, and eleven thousand four-year-old plants, whereas, in truth and in fact, counting one-half the roots in the river garden and all the roots in the home garden, as belonging to plaintiff and all that passed by the sale, there were but one thousand one-year-old plants, six thousand two hundred and fifty two-year-old, twelve thousand four hundred and ninety three-year-old, none that were four years old and only sixty-six hundred and thirty-four that were five years old, making a total of only twenty-six thousand three hundred and seventy-four plants, worth at the time of the sale less than thirty-seven hundred and fifty dollars.
In September, 1902, defendant Smith went to Houston and in a few days after his arrival, counted and had counted the ginseng roots then in both gardens. His evidence tends to show that Thomas Millard represented him, that he was buying a half interest in forty-two thousand plants in the river garden and thirty-five thousand old plants in the home garden, and that he relied upon these representations and believed that he was buying what Millard represented he was selling; that by actual count, in September 1902, there were only seven thousand and ninety-six five-year-old, twenty-seven hundred and fifty-eight under five, and ten thousand one hundred and forty-six three-year-old plants in both gardens owned by plaintiff, and that the difference in the value of the property as represented by Millard and its real value exceeded the amount of the note sued on.
In rebuttal plaintiff offered evidence tending to show that the season of 1903 was unusually wet and very unfavorable to the preservation and growth of ginseng plants; that wet weather caused them to rot. Plaintiff had no correspondence with defendant Smith in regard to the sale and purchase of the property, and plaintiff testified that at the time she made the deed she did not know and was not informed who the purchaser was.
Judgment reversed and cause remanded.
W. L. Hiett and Woodruff & Mann for appellants.
(1) The court erred in excluding the written instrument called "Contract of Option" offered by defendants. The burden of showing that Thos. F. Millard, of whom defendant L X. Smith bought the property, in part payment for which the note sued on was given, was the agent in making said sale of plaintiff, was on defendants. Gentry v. Ins. Co., 15 Mo.App. 215; Breckinridge v. Ins. Co., 87 Mo. 62. (2) The court erred in refusing instruction numbered one asked by the defendants. Plaintiff received the benefits of the trade or sale that Thos. F. Millard had made for her, and was suing on the note taken by him for her as part of the purchase price of said sale. She could not at the trial be heard for the first time to say that the said Millard did not represent her in said trade and the court should have, when requested by plaintiff, so instructed the jury. Fahy v. Grocer Co., 57 Mo.App. 73; Watson v. Biglow, 47 Mo. 413; Mechem on Agency, sec. 148; Dry Goods Co. v. Bank, 81 Mo.App. 46; Sash & Door Co. v. Gitchell, 69 Mo.App. 115; Hoppe v. Saylor, 53...
To continue reading
Request your trial